Opinion
Civ. 3:23-cv-00250-CL
03-04-2024
JAMES P.[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
CLARKE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff James P. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). For the reasons provided below, the Commissioner's decision should be AFFIRMED, and this case should be DISMISSED.
PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB on October 29, 2019, with an alleged onset date of July 6, 2018. Tr. 286. Plaintiff also filed an application for SSI on November 9, 2018, with an alleged onset date of May 28, 2016. Tr. 215. Plaintiffs application was denied on March 5, 2020, and again upon reconsideration on July 8, 2020. Tr. 83-84, 94-95. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 140, and a hearing was held on March 4, 2021. Tr. 49. On April 23, 2021, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 111. The Appeals Council reviewed the ALJ's decision and remanded for further proceedings. Tr. 119-22. A second hearing was held on October 28, 2021. Tr. 32. On January 18, 2022, the ALJ issued a second decision finding Plaintiff not disabled within the meaning of the Act. Tr. 26. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1. Plaintiffs timely appealed followed.
“Tr.” citations are to the Administrative Record. EOF No. 7.
FACTUAL BACKGROUND
Plaintiff was 53 years old on his alleged onset date. Tr. 75. He has a high school diploma with two years of college and is unable to perform past relevant work. Tr. 25, 334. Plaintiff alleges disability based on his right and left knee, blood issues, type 2 diabetes, and tinnitus. Tr. 333.
DISABILITY ANALYIS
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm 'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks' the following series of questions:
5. Is the claimant performing “substantial gainful activity”? 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(h). Unless expected to result in death, an impairment is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(h); 416.920(a)(4)(h). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the “residual functional capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and . continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or . she is disabled.See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094,1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in Significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
THE ALJ'S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from July 6,2018, through December 31,2018. Tr. 17. The ALJ also found that Plaintiff met the insured status requirements of the Act. Id. At step two, the ALJ found that Plaintiff had the following severe impairments: osteoarthritis of the right knee and obesity. Tr. 18. At step three, the ALJ found that Plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of a listed impairment. Tr. 19. The ALJ found that Plaintiff had the RFC to perform light work with the following exertional and non-exertional limitations:
[Plaintiff] can occasionally push and/or pull with the right lower extremity. He should have the option to change position between sitting and standing in thirty-to-sixty-minute intervals. He can frequently stoop, occasionally crouch and climb ramps and stairs, but can never kneel, crawl, or climb ladders, ropes, or scaffolds.Tr. 19-20. At step four, the ALJ determined that Plaintiff is unable to perform any past relevant - work. Tr. 24. At step five, the ALJ found, in light of Plaintiffs age, education, work experience, and RFC, a significant number of jobs existed in the national economy such that Plaintiff could sustain employment despite his impairments. Tr. 25. The ALJ thus found Plaintiff was not disabled within the meaning of the Act. Tr. 26.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence' means ‘more than a mere scintilla but less than a preponderance,' or more clearly stated, ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
If the decision of the Appeals Council is the final decision of the Commissioner, this Court must review the decision of the Appeals Council to determine whether that decision is supported by. substantial evidence. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986). Where the evidence before the ALJ or Appeals Council is subject to more than one rational interpretation, the Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041). “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing court “cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not invoke in making its decision.” Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse the Commissioner's decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, “the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
DISCUSSION
Plaintiff asserts that remand is warranted because the ALJ erred in their RFC . determination because: (1) the ALJ erred in their assessment of Plaintiffs subjective symptom testimony; (2) the ALJ's step five finding was not supported by substantial evidence; (3) the ALJ's hypothetical to the vocational expert (“VE”) was invalid; and (4) the ALJ improperly assessed the lay witness testimony. For the reasons that follow, the Court concludes that the ALJ did not err in their assessment, and the Commissioner's decision is affirmed.
I. Subjective Symptom Testimony
The ALJ found that “the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 21. Plaintiff assigns error to the ALJ's evaluation of his subjective symptom testimony, specifically that the ALJ did not provide specific, clear and convincing reasons supported by substantial evidence in the record to discredit Plaintiffs testimony. Pl.'s Br. 8-10, ECF No. 8.
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the claimant is not credible is insufficient; instead, the ALJ “must state which ... testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12F.3d915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted). If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is not an examination of an individual's character,” and requires that the ALJ consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms.SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25,2017). The ALJ must examine “the entire . case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.
Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the assessment of claimant's “credibility.” See SSR 16-3p, 2017 WL 5180304, at *1-2 ('S.S.A. Oct. 25, 2027).
Plaintiff testified that due to chronic pain in his knees, prior to his late 2019 surgery, he . could only stand and walk for a total of three or four hours a day, that his knees hurt whenever he . used his legs, and that he could only walk to the end of the block before needing to return home and lie down. Tr. 41-42. After surgery, Plaintiff testified that his knee still hurts due to inadequate physical therapy, that his gait is “completely off,” and that his knee clicks. Tr. 42-43. In his function report, Plaintiff testified that he walked with a cane and a limp, could not stand more than four hours a day, and was bedridden 20 hours a day because he could only work for four hours a day. Tr. 320-21. Plaintiff also stated he cannot bend his knee to put on pants or cut his toenails. Tr. 321.
Here, the ALJ rejected Plaintiff's subjective symptom testimony because he was noncompliant with treatment and his testimony was inconsistent with medical records. Tr. 20-23.
A. Medical Records
In some circumstances, an ALJ may reject subjective complaints where the claimant's “statements at her hearing do not comport with objective medical evidence in her medical' record.”Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However, a lack of objective evidence may not be the sole basis for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
An independent review of the record establishes that the ALJ properly considered the objective medical record in discounting the Plaintiffs subjective symptom testimony. Plaintiffs records show his ongoing knee pain began before his alleged onset date and include a now repaired ACL rupture. Tr 457. Plaintiff also underwent other arthroscopic procedures prior to his total knee arthroplasty. Id. In August 2018, upon examination, Plaintiffs gait was non antalgic, he was unable to stand or squat on one leg, used a cane for balance, and had mild effusion and patellar crepitus, while also having no knee instability. Tr. 457-58. Plaintiffs doctor recommended total knee arthroplasty because conservative treatment had not resulted in significant change. Tr. 458. Furthermore, Plaintiff had negative Lachman's and McMurray's signs and denied generalized joint pain and stiffness. Id.
In August 2019, one year following the surgical recommendation, Plaintiff's right knee had moderate effusion, normal alignment, was moderately tender to palpation, and possessed full 5/5 strength. Tr. 545. Plaintiff's physician also noted that further deferral of surgical management would result in progressive joint degeneration, deformity, and possible increased risk of complications, debility, disability, and increased fall risks. Id. In December 2019, Plaintiffs knee pain resulted in an antalgic gait, but he also had full 5/5 strength and normal muscle tone. Tr. 587. Prior to Plaintiffs surgery, records also indicate he was able to walk at least four blocks without rest, regularly walked up a large hill to his house, and that he retained normal muscle tone. Tr. 981,987, 989. Combined with Plaintiffs own testimony that he can stand for three-to-four-hours at a time, and the RFC reflecting a sit or stand at will option, the medical record provided clear and convincing reason to reject Plaintiffs testimony.
B. Treatment
A claimant's improvement with treatment is “an important indicator of the intensity and persistence of... symptoms.” 20 C.F.R. §§ 404.1529(c)(3). For example, “[i]mpairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm 'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Symptom improvement, however, must be weighed within the context of an “overall diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester . v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods ... are not inconsistent with disability.”).
As noted above, Plaintiff testified to being unable to work due to ongoing knee pain which prevented him from being on his feet for more than three-to-four hours at a time, and that his knee pain continued whether he was sitting or standing. Plaintiffs records show that he waited a year and a half to undergo surgery. Tr. 402,1007. In October 2018, two months after receiving a surgery recommendation, Plaintiff was denied surgery due to his uncontrolled diabetes., Tr. 1475. Plaintiff was noncompliant with his diet and his home glucose monitoring. Id. Plaintiff also refused the use of insulin injections. Id. In December 2018, Plaintiff continued refusing insulin injections despite his uncontrolled blood glucose despite knowing it was preventing him from getting surgery and that oral treatment was not sufficient. Tr. 1481. In February 2019, Plaintiff admitted that his diabetes was not under control because of poor nutrition and diet. Tr. 1489. Plaintiff argues that low platelet count served as the true reason for not receiving treatment, rather than through any fault of his own in failing to treat his diabetes. Pl.'s Br. 9, ECF 7. Plaintiff, however, is incorrect. Plaintiff conveniently overlooked that his uncontrolled glucose levels led to him being denied surgery for at least a year, and while Plaintiff did receive treatment for low platelet count, prior to surgery his platelet count had not improved and he was given a transfusion so surgery could go forward, demonstrating that low platelet count was not a major limiting factor. Tr. 982.
Reports from February 2020, six weeks after his surgery, show that Plaintiff was doing well, and that even though he was walking with a cane, he had increased range of motion, his knee was stable to varus and valgus stresses in extension and flexion, he had minimal effusion, and intact dorsiflexion and plantarflexion. Tr. 1083-84. In June 2020, Plaintiff stated that he was slowly improving with physical therapy, even though he had experienced delays. Tr. 1075. In October 2020, Plaintiff's knee continued showing stability to varus and valgus stresses in extension and flexion with minimal effusion and was nontender to palpation, but he reported pain from his low back and thigh rather than his knee. Tr. 1595. It should also be noted that while Plaintiff was advised he needed aggressive physical therapy, he reported not exercising at home despite having a home exercise program. Tr. 1004, 1379-80.
Given the above, the AL J did not err in discounting Plaintiff's subjective symptom testimony.
IL Lay Witness Testimony
Lay witness testimony about a claimant's symptoms is competent evidence that an ALJ must consider unless he “expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that competent lay witness testimony “cannot be disregarded without comment” (emphasis in original)).
In addition to Plaintiffs own subjective symptom testimony, his friend provided a third-party statement. Tr. 341-48. Plaintiff argues the ALJ erred by improperly assessing the lay witness statement. Pl.'s Br. 10-12, ECF 7. The Commissioner argues the ALJ properly evaluated the assessment by correctly incorporating it as support for the limitations in the ALJ's RFC. Def's Br. 11-14. The Commissioner is correct.
Plaintiffs friend provided a statement describing greater limitations than those provided by Plaintiff, including not being able to stand for any period of time, not being able to walk more than 20 feet at a time, inability to climb stairs, inability to sit or stand without help, and needing a cane to walk more than a few feet. Tr. 341. Further limitations included pain limiting Plaintiffs ability to do daily activities, needing to use an electric cart to grocery shop, inability to squat, bend, or kneel, inability to lift more than 20 pounds, and inability to stand more than five minutes. Tr. 342-46. The ALJ found the friend's third-party statement supported some limitations, which were addressed in Plaintiffs RFC. Tr. 21. As discussed above, Plaintiffs own testimony contradicts the third-party statement, and Plaintiffs subjective symptom testimony was properly rejected for being inconsistent with medical records and lack of treatment. The third-party statement suffers from the same defects.
Therefore, the ALJ did not err in evaluating the lay witness testimony from Plaintiffs friend.
III. Step Five
At step five, the Commissioner has the burden “to identify specific jobs existing in substantial numbers in the national economy that the claimant can perform despite [his] identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); 20 C.F.R § 416.920(g). In making this determination, the ALJ relies on the Dictionary of Occupational Titles (DOT), which is the Social Security Administration's “primary source[] of reliable job information” regarding jobs that exist in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); 20 C.F.R §§ 416.969,416.966(d)(1).
The ALJ relies on the testimony of a VE to identify specific occupations that a claimant can perform in light of his RFC. 20 C.F.R § 416.966(e); Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). When there is an apparent conflict between the vocational expert's testimony and the DOT, the ALJ is required to reconcile that inconsistency by posing . questions about the potential conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). Nevertheless, if the ALJ fails to ask the vocational expert about the potential conflict, that “procedural error” may be “harmless” if there is no conflict between the vocational expert's testimony and the DOT. Id. at 1154 n. 19.
Here, the ALJ found at step five that plaintiff could perform the occupations Marker, Small Product Assembler II, and Electronics Worker. Each of these occupations are listed as unskilled, light work, and total approximately 418,000 jobs in the national economy. Tr. 26.
Plaintiff argues that the ALJ did not properly assess whether a significant number of jobs existed in the national economy that Plaintiff could still do despite his limitations. Specifically, Plaintiff argues that the VE did not provide an adequate explanation regarding Plaintiff's limitation that he should have an option to change positions from sitting to standing every 30-60 minutes. Pl.'s Br. 5-8, ECF 7. Plaintiffs argument is unavailing.
Plaintiff argues that the Appeals Council reversed and remanded the first decision in his case due to this same legal error. Pl.'s Br. 5-8, ECF 7. Plaintiff, however, is mistaken. The Appeals Council remanded Plaintiffs first decision not because the explanation was inadequate, but because, the original audio recording was missing the VE's testimony. Tr. 215. Because the VE's explanation regarding a possible conflict with the DOT was inaudible, and therefore . unreviewable, Plaintiffs case was remanded in order to resolve the aforementioned conflict. Id. At Plaintiffs hearing, the ALJ proposed a hypothetical including Plaintiffs need to change positions from sitting to standing every 30-60 minutes. Tr. 45-46. In response, the VE identified Small Product Assembler II, Marker, and Electronics Worker as three occupations that fit the ALJ's hypothetical. Tr. 46. The ALJ then asked if there were any conflicts with the DOT in the VE's testimony. Tr. 47. The VE explained that jobs “are not always broken down in terms of how much sitting and standing is involved,” but can be based on the fact that “it's production-paced work and doesn't necessarily have to do with the sitting or standing.” Id. The VE further testified they were relying on their 42 years' worth of experience as well as how jobs are actually performed. Id. .
Given the VE's explanation and the inaccuracy of Plaintiffs argument, the ALJ did not err in their step five finding.
Lastly, Plaintiff argues the hypothetical proposed by the ALJ to the VE was invalid because it did not include all of Plaintiffs limitations due to improperly rejected subjective symptom and lay witness testimony, which would have resulted in greater limitations. Pl.'s Br. 12, ECF 7. As discussed above, Plaintiffs subjective symptom and lay witness testimony were properly discounted and, therefore, the ALJ did not err when proposing their hypothetical.
RECOMMENDATION
For the reasons above, the Commissioner's decision should be AFFIRMED. This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed.R.Civ.P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive their right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).